remedies for personal injury and death

Question 1

the objective of damages

Answer 1

The aim of damages in tort is to place the claimant, so far
as money can do so, in the same position they would have
been in had the tort not occurred.

Question 2

3

pecuniary loss-loss of income

Answer 2

1. past income
2. future income
3. expenses

Question 3

2

loss of past income (precise calculation)

Answer 3

1.Past income is income lost in the period between the injury and trial or settlement
2.net loss of wages
This means that tax and national insurance are deducted from the claimant’s gross pay, leaving a net figure on which the calculation is based. The calculation also takes account of any sick pay provided by the claimant’s employer, which reduces the claimant’s loss of wages.

Question 4

loss of future income

Answer 4

*The claimant’s injuries are such that the claimant is not
able to return to work of any kind; or
*The claimant can return to some work, but cannot return
to the pre-accident employment they had and must fnd
alternative work at a lower rate of pay.
In each case, damages are awarded to compensate the
claimant for the loss of future income. These damages are
awarded as one lump sum, assessed at the time of trial (or
settlement).

Question 5

3

how to assess the loss of future income

Answer 5

1. Claimant Unable to Return to Work
   This calculation is made by taking the claimant’s pre-accident annual income (called the multiplicand) and multiplying it by the number of years of lost income (called the** multiplier**).
2. Claimant Limited in Return to Work
   If the claimant can return to work, but only in a divferent job at a lower rate of pay, the same method is used to assess the lump sum. In this case, the diference between the claimant’s original salary before the accident and the new reduced salary after the accident is taken as the multiplicand.
3. Claimant Has Shortened Life Expectancy
   the claimant can recover damages for the income they would have earned during those ‘lost years.’ When this figure is calculated, a reduction is made to reflect the amount which the claimant would have spent on their own living expenses during those lost years.

Question 6

expenses

Answer 6

1. Expenses include costs of medical treatment, costs of care, costs of necessary equipment and adaptations to the home, and additional travel costs.
2. Past expenses incurred between
   injury and trial or settlement are capable of precise calculation. Future expenses will be assessed by the court, based on the evidence provided.
3. Note that
   when a claimant is entitled to medical treatment free of charge provided by the National Health Service (‘NHS’) but chooses instead to pay for private treatment, the defendant is barred by statute from arguing that it was not reasonable to incur the costs of private treatment. In other words, a claimant is not obliged to mitigate their loss by accepting treatment provided by the NHS.

Question 7

2

Nonpecuniary Losses

Answer 7

1.Past and Future Damages Available
Damages will be awarded to cover both past and future pain and suffering and loss of amenity.

2.Unconsciousness Limitation
When an injured claimant is unconscious for a period of time and does not experience pain and suffering, no damages for pain and suffering will be awarded for that period. However, such a claimant still suffers the loss of amenity caused by the injury, so damages are still awarded to compensate the unconscious claimant for this loss.

Question 8

Damages Terminology: General and Special Damages

Answer 8

a.Special Damages
Special damages are those which can be precisely calculated at the time of trial (or settlement). So, they include past loss of earnings and past expenses.
b.General Damages
General damages are those which need to be assessed by the court. So, they include future loss of earnings and future expenses. They also include nonpecuniary damages for past and future pain and suffering and loss of amenity.

Question 9

2

damages on death

Answer 9

1. If a claimant dies, their existing cause of action may continue for the beneft of their estate.
2. If the victim of an accident dies, a new cause of action may arise for the beneft of their dependants, and for bereavement.

Question 10

3

Survival of Deceased’s Cause ofAction

Answer 10

1. If a claimant dies, any existing cause of action in tort survives for the beneft of their estate. So if a claimant suffers personal injury and then dies before completing a claim, the claim will continue. The estate will be able to recover damages for pain and suffering and loss of amenity up to death and expenses and loss of earnings up to death.
2. No damages are recoverable for the period after death. Also, there is no claim for the death itself. So if a claimant is killed instantly, with no pain,
   no damage to property, and no loss of earnings,** there is no actionable damage** and so no claim to survive their death.
3. Survival of Action Against Deceased
   Causes of action against a defendant who dies also survive and may be brought** against their estate**.

Question 11

2

Damages for Dependants and for
Bereavement

Answer 11

a.Damages for Bereavement
The amount recoverable for bereavement damages is fixed by statute. Only the following are eligible to make a claim for damages for bereavement:
*The spouse or civil partner of the deceased;
*The cohabiting partner of the deceased (defined as a person who was living with the deceased as spouse for at least two years immediately prior to death);
*The parents – if the deceased was a minor (under 18) and never married.

b.Damages for Loss of Dependency
To be entitled to damages for loss of dependency the claimant must satisfy both of the following conditions:
*They must be an eligible dependant, as defined by the statute. This includes the same people listed above who can recover for bereavement plus children of the decedent.
*They must have been financially dependent on the deceased.